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Tuesday, October 7, 2014

Is Bryan Taylor drawing from Riley Machine playbook with defamation suit that smells of ulterior motives?

Bryan Taylor

A lawsuit from State Sen. Bryan Taylor (R-Prattville) against Alabama Political Reporter(APR) appears, at first glance, to be a legitimate complaint for defamation.

But when you consider that Taylor is a high-profile ally of former Governor Bob Riley, and his lawsuit came less than 10 days after APR broke multiple stories about the possibility that the Riley Machine will be targeted in a Lee County grand-jury investigation, a reasonable person might ask: Is the Taylor lawsuit more about intimidation than defamation?

That question especially resonates when you consider that, as a public official, Taylor has a tiny chance of overcoming the "reckless disregard" standard he would have to reach in order to win a defamation lawsuit. The question resonates even more when you consider that Taylor might be borrowing a page from Rob Riley, a Birmingham attorney and the former governor's son.

I know from firsthand experience that Rob Riley has, on at least one occasion, filed a lawsuit that wasn't what it seemed. In fact, it's been almost one year since Riley's defamation lawsuit caused me to be unlawfully arrested and incarcerated for five months in the Shelby County Jail. I became the only imprisoned journalist in the western hemisphere for 2013, and analysts from both the left and right roundly criticized Judge Claud Neilson's actions as wildly unlawful.

Rob Riley, however, has mostly escaped the criticism he deserves for filing a lawsuit that bears little resemblance to an actual defamation complaint. First, Riley asked that the case be sealed, contrary to Alabama law. Second, he repeatedly asked the court for remedies that are not authorized by law. Third, Neilson behaved as if he was Riley's nearest cousin, violating procedural law, longstanding case law, and simple due process--favoring Riley at every turn.

All of that suggests the Riley lawsuit, from the outset, was about incarceration, not defamation. He also sought to have my wife arrested, even though at the time of the lawsuit, she had nothing to do with this blog, which was the focus of Riley's complaint.

Is Bryan Taylor using a similar form of misdirection and intimidation with his complaint against APR? Perhaps only Taylor knows for sure at this point, but he clearly has powerful connections to Rob Riley. And my case shows that Rob Riley has no qualms about abusing the legal process in an effort to chill online reporting.

How do we know? Let's consider a few elements of Riley's claim--and contrast them with actual defamation law:

* Riley immediately asked for a temporary restraining order (TRO), followed by a preliminary injunction--A long line of state and U.S. Supreme Court cases show that TRO's and preliminary injunctions are barred as unconstitutional prior restraints in defamation cases. One of the most recent examples is a Virginia case styled Dietz v. Perez, which involved a woman writing a negative review about a construction contractor on a couple of Web forums. The foundational case on the subject is a 1931 U.S. Supreme Court case styled Near v. Minnesota, which was built on roughly 200 years of First Amendment law.

* Riley asked for a judge to rule on the case, not a jury--The law holds that the First Amendment enjoys an exalted place in our democracy, and such cases are to be decided by a jury. To allow bench trials on such matters is to invite censorship by a single judge. Juries are deemed necessary to protect the cherished right to free speech. This principle is perhaps best discussed in Bernard v. Gulf Oil Co., 619 F. 2d 459 (Fifth Circuit, 1980).

Rob Riley

Rob Riley sought an unlawful TRO and preliminary injunction, he did not seek a trial, and he did not ask for a jury. All of this violates clear law, and indicates his lawsuit was really about something other than defamation. In fact, his case never even looked like a defamation claim.

As the victim of Riley's lawsuit, I have strong feelings on this subject. It involved an unlawful request for a preliminary injunction, plus an accelerated court process that almost ensured I was going to be held in contempt of court. That provided the excuse to have me arrested--and I'm convinced that was the suit's primary purpose. It also provided an excuse to level some $34,000 in unlawful sanctions against my wife and me, another example of the financial terrorism for which certain Southern Republicans are known.

A number of online analysts, who all say Neilson's rulings were unlawful, have questioned my handling of the case--that I should have addressed the preliminary injunction more directly, that I should have hired a lawyer, etc. (Never mind that I was arrested before I could address the injunction, plus I talked to two lawyers in jail, and my wife tried mightily to seek legal representation for me.) I'm convinced I was going to be arrested, no matter what I did.

Bryan Taylor, to his credit, has fashioned a defamation complaint against APR that at least has the appearance of legitimacy. He does not ask for a preliminary injunction, and he does ask for a jury trial. He does request injunctive relief near the end of the complaint, but that would be lawful if it were to come after a full adjudication on the merits--if a jury were to find the APR article defamatory, with writers Bill and Susan Britt having an opportunity for appellate review.

So what might be Taylor's ulterior motive? Is he interested in a full adjudication, based on the facts and the law? I doubt it, and I will tell you why in an upcoming post.